You are hereby notified that the Court has entered the
following opinion and order:

2011AP2717-CRNM

State of Wisconsin v. Juan C. Whiteside
(L.C. # 2008CF4687)

Before Higginbotham, Sherman and
Blanchard, JJ.

Juan Whiteside appeals a
judgment of conviction and sentence for first-degree recklessly endangering
safety, attempted armed robbery with use of force, and bail jumping, following
a jury trial, and orders denying his postconviction motions.Attorney Paul Bonneson has filed a no-merit
report seeking to withdraw as appellate counsel.SeeWis. Stat. Rule 809.32 (2009-10);[1]
and Anders v. California, 386 U.S. 738, 744 (1967).The no-merit report addresses: (1) whether
the evidence was sufficient to support the jury verdicts; (2) whether the
circuit court erroneously exercised its sentencing discretion; (3) whether the
circuit court erred by denying Whiteside’s postconviction motion to correct the
judgment of conviction to order Whiteside eligible for the Challenge
Incarceration Program (CIP); and (4) whether the circuit court erred by
denying Whiteside’s postconviction motion to vacate the DNA surcharge.Whiteside was sent a copy of the report, but
has not filed a response.Upon
independently reviewing the entire record, as well as the no-merit report, we
agree with counsel’s assessment that there are no arguably meritorious
appellate issues.Accordingly, we
affirm.

In September 2008, the State
charged Whiteside with first-degree recklessly endangering safety as party to a
crime, while armed; attempted armed robbery by use of force as party to a
crime; and felony bail jumping.Following
trial, the jury returned guilty verdicts on all counts.Whiteside, by counsel, filed two
postconviction motions: one to correct the judgment of conviction and sentence
to state that Whiteside is eligible for CIP, and one to vacate the DNA
surcharge.The circuit court denied both
motions.

First, we agree with counsel
that there was sufficient evidence to support the jury’s verdicts. A claim of insufficiency of the evidence
requires a showing that “the evidence, viewed most favorably to the state and
the conviction, is so insufficient in probative value and force that it can be
said as a matter of law that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.”State
v. Poellinger, 153 Wis.
2d 493, 501, 451 N.W.2d 752 (1990).We
agree with counsel’s assessment that there would be no arguable merit to an
argument that that standard has been met here.

The victim testified to the
following: The victim was leaving his
apartment when he was approached by three men outside the front door of the
building, which was a duplex.He identified
Whiteside as one of the three men who approached him, and identified the other
two as Robert Lee and Derek Murray.Lee
said to the victim, “do you know what time it is,” which the victim understood
to mean that the men intended to rob him.Lee and Murray had guns, but Whiteside did not.

All three of the men surrounded the
victim and brought him up the stairs to the upper unit of the duplex, which was
his apartment.There was a problem
opening the apartment door, and Lee shot the victim in the arm.Lee, Murray, and Whiteside forced the door
open and everyone went into the apartment.Lee asked the victim, “where is everything,” and “where’s the stuff,”
while Murray and Whiteside searched the apartment.When Murray and Whiteside were unable to
locate anything, Lee shot the victim in the hip.Murray and Whiteside then continued to search
the apartment.The victim tried to run
out of the back door, and Murray and Whiteside pursued him, and Murray shot him
in the chest.

The victim ran down the back
stairs, and Whiteside held the victim up against the wall, saying things like
“where you going,” “where you think you going,” and “where the shit at?”The victim and Whiteside wrestled until the
victim broke free and both entered the downstairs duplex.The victim ran through the house and did not
see Whiteside again.The victim had been
involved in selling drugs, and the actions and statements by Lee, Murray, and
Whiteside led him to believe they were attempting to find drugs in his
apartment.

Whiteside testified in his
defense as follows: Lee asked Whiteside
to drive around and drink with him, and Whiteside agreed to go with him.Whiteside got into a car with Lee.Lee’s girlfriend and Murray were also in the
car.Whiteside had never met Murray
before.They drove around for about an
hour and a half, drinking and talking.Whiteside then told Lee he had to use the bathroom, and Lee told
Whiteside he was about to pull over to “check” someone, meaning to “put him in
his place.”Whiteside asked to be taken
home first, but Lee said no.

The car pulled into an alley,
and Whiteside, Murray, and Lee exited the car.The three men walked around the corner to where the victim was exiting
his apartment building.Lee and the
victim argued over whether the victim had said something about Lee to someone
else, and when a neighbor opened her door and looked at the group, Murray
pointed a gun at her and said “you don’t want nothing to do with this.”Prior to that, the victim did not know if either
Murray or Lee had a gun in their possession.

Murray then said “take this in
the house,” and the victim complied with entering the house because Murray had
a gun.Whiteside did not leave because
he did not know whether Murray would try to harm him if he did.While Lee tried to force the door open,
Murray fired the gun at the victim.Murray
kicked the door open and the whole group entered the apartment.Whiteside felt shocked, and didn’t leave at
that point for fear that Murray would shoot at him.Murray continued to point the gun at the
victim, and said, “give me everything you got.”The victim looked around and realized Lee was gone, and started to back
slowly out of the apartment until he felt safe enough to turn and run.Whiteside heard gunshots, and ran out of the
building and saw a man and woman on the street corner; the man was holding a
butcher knife.

Whiteside ran back into the
apartment building looking for Lee so that they could leave together, and the
victim grabbed Whiteside, using him as a shield against Murray.Whiteside punched the victim to get away from
him, and then ran out of the house into an alley.Murray ran behind him with the gun still
out.Lee drove by and Whiteside and
Murray got in the car with him.Whiteside was then dropped off at his mother’s house.

The jury was entitled to weigh
the testimony and determine the credibility of the witnesses.The victim’s testimony supported the jury
verdicts finding Whiteside guilty of first-degree recklessly endangering safety
with use of a dangerous weapon as party to a crime and attempted armed robbery
as party to a crime.SeeWis.
Stat. §§ 941.30(1) (defendant is guilty of first-degree recklessly
endangering safety if he “recklessly endangers another’s safety under
circumstances which show utter disregard for human life”); 939.63 (providing
for increased penalties “[i]f a person commits a crime while possessing, using
or threatening to use a dangerous weapon”); 943.32(2) (defendant is guilty of
armed robbery if, “with intent to steal, [he] takes property from the person or
presence of the owner … by use or threat of use of a dangerous weapon”); 939.32(3)
(describing attempt); 939.05 (“Whoever is concerned in the commission of a
crime is a principal and may be charged with and convicted of the commission of
the crime …. A person is concerned in
the commission of the crime if the person …[i]ntentionally aids and abets the
commission of it ….”).Additionally,
Whiteside stipulated that he had been charged with a felony and released on
bond which required that he not commit any new crimes; the jury’s guilty
verdicts on the first two counts, together with Whiteside’s stipulation, was
sufficient to support the jury verdict on the bail-jumping charge.SeeWis. Stat. § 946.49(1) (defendant
is guilty of bail-jumping if, “having been released from custody [on bond, he] intentionally
fails to comply with the terms of his … bond”).

Next, we agree with counsel that
a challenge to Whiteside’s sentence would lack arguable
merit.Our review of a sentence
determination begins “with the presumption that the [circuit] court acted
reasonably, and the defendant must show some unreasonable or unjustifiable
basis in the record for the sentence complained of.”State v. Krueger, 119 Wis. 2d
327, 336, 351 N.W.2d 738 (Ct. App. 1984).The record establishes that the defense was afforded the opportunity to
comment on the presentence investigation report (PSI), and Whiteside and his
mother were afforded the opportunity to address the court prior to
sentencing.The State recommended the
court impose a prison sentence more than the PSI author’s recommendation of
five to seven years of initial confinement and five to seven years of extended
supervision, but less than the maximum.The
defense recommended three to four years of initial confinement and three to
five years of extended supervision.

The court explained that it
considered the standard sentencing factors and objectives, including the
severity of the offenses, Whiteside’s character and rehabilitative needs, and the
need to protect the public.SeeState v. Gallion, 2004
WI 42, ¶¶39-46 & n.11, 270 Wis. 2d 535, 678 N.W.2d 197.The court determined that a sentence of
probation would unduly depreciate the seriousness of the offense, but that
while prison was necessary, the maximum sentences were not warranted.The court sentenced Whiteside to a total of
ten years of initial confinement and five years of extended supervision.The sentences were within the applicable
penalty range.SeeWis. Stat. §§ 941.30(1)
(providing that first-degree recklessly endangering safety is a Class F
felony); 939.50(3)(f) (providing that Class F felonies are punishable by up to twelve
years and six months of imprisonment and $25,000 fine); 973.01(2)(b)6m. (under
bifurcated sentence, maximum length of initial confinement for class F felonies
is seven years and six months); 943.32(2) (providing that armed robbery is a
Class C felony); 939.50(3)(c) (providing that Class C felonies are punishable
by up to forty years of imprisonment and a $100,000 fine); 973.01(2)(b)3.
(under bifurcated sentence structure, maximum length of initial confinement for
Class C felonies is twenty-five years); 946.49(1)(b) (providing that felony
bail-jumping is a Class H felony); 939.50(3)(h) (providing that Class H
felonies are punishable by up to six years of imprisonment and $10,000 fine);
and 973.01(2)(b)8. (under bifurcated sentence, maximum length of initial confinement
for Class H felonies is three years).The
sentence was well within the maximum Whiteside faced, and therefore was not so
excessive or unduly harsh as to shock the conscience.SeeState v. Grindemann, 2002
WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507.Additionally, the court granted Whiteside 491
days of sentence credit, as recommended by counsel.We discern no erroneous exercise of the
court’s sentencing discretion.

Finally, we agree with counsel
that there would be no arguable merit to a challenge to the circuit court’s
orders denying Whiteside’s postconviction motions.The first postconviction motion sought to
correct the judgment of conviction to state Whiteside’s eligibility for CIP,
based on the sentencing transcript’s reflecting that the circuit court stated
Whiteside was eligible.However, the
court reporter then filed a corrected transcript reflecting that the circuit
court had actually stated that Whiteside was ineligible for the program.Accordingly,
we agree that there would be no arguable merit to an appeal on this issue.

The second postconviction motion
sought to vacate the DNA surcharge imposed by the court.Whiteside argued that the circuit court
erroneously exercised its discretion by ordering the DNA surcharge without
sufficient explanation.SeeState v. Cherry, 2008 WI App 80,
¶10, 312 Wis. 2d 203, 752 N.W.2d 393.The
circuit court denied the motion, citing the sentencing court’s language as an
adequate explanation: “Next, you are required to provide a DNA sample.It wouldn’t appear that you would have
provided one in the past, so I’m going to order that you pay the DNA surcharge
since you will be providing the sample in connection with this case.”The order denying the postconviction motion
explains that the sentencing court’s reasoning was sufficient because it relied
on the cost of collecting the sample in this case as the reason to impose the
surcharge.We agree with counsel that
there would be no arguable merit to an appeal from the court’s exercise of
discretion in imposing the DNA surcharge.

Upon our independent review of
the record, we have found no other arguable basis for reversing the judgment of
conviction.We conclude that any further
appellate proceedings would be wholly frivolous within the meaning of Anders
and Wis. Stat. Rule 809.32.

IT IS ORDERED that the judgment
of conviction and orders are affirmed pursuant to Wis. Stat. Rule 809.21.

IT IS FURTHER ORDERED that Attorney Bonneson is relieved of
any further representation of Whiteside in this matter.SeeWis.
Stat. Rule 809.32(3).

Diane M. Fremgen

Clerk of Court of Appeals

[1]All references to the Wisconsin Statutes are
to the 2009-10 version unless otherwise noted.